Caselaw Update

Caselaw update – Deportation in the Upper Tribunal and the Court of Appeal

June 2023

The deportation of foreign criminals continues to provide a steady supply of new authorities for consideration by immigration law practitioners and this update discusses two recent cases which may be of interest, namely: (a) Sicwebu v SSHD [2023] EWCA Civ. 550 and (b) Secretary of State for the Home Department (“SSHD”) v TC UI-2022-006242 (HU/54450/2022) (unreported at the date of writing), the latter heard jointly by the Presidents of both the First-tier and Upper Tribunal (Immigration and Asylum Chamber). I also briefly highlight a case from April, namely Secretary of State for the Home Department v MS (judicial interventions; complaints; safety concerns) Bangladesh [2023] UKUT 114 (IAC).

The Court of Appeal’s decision in Sicwebu was given by Lady Justice Simler KC, the former President of the Employment Tribunal, and the Court’s main concerns around the UT (IAC)’s dismissal of the Appellant’s appeal may be found in paragraphs 59 to 67. The observations in paragraph 63 regarding the utility of past family member separation as a yardstick for the degree of harshness imposed by deportation in the future very sensibly reflects on the fundamental difference between a spouse or partner being able to cope with an appellant’s absence whilst they were in a UK jail prior to deportation action (Including the possibility of visits, for example) and the additional difficulties imposed by the removal of ana appellant from the UK, and is particularly welcome further guidance from the Civil Division in the context of the UKSC’s clear guidance on how to correctly interpret and apply the unduly harsh test in HA (Iraq) (paragraphs 41 – 45). Furthermore, the Court‘s emphasis in Sicwebu on the need to focus upon the individual assessment of the Appellant’s family’s situation at the date of the hearing and “… specific factors in the particular case that might affect the degree of harshness of the impact upon the deportee’s family” (paragraph 66) rather than apply a comparator approach - which the Supreme Court forcefully rejected in HA (Iraq) (paragraphs 31 to 39) -  is also useful.

However, there is arguably a potential problem with this judgment and that is the Court’s apparent acceptance of the need (at the date of the hearing) for the UT (IAC) to factor into its assessment of the undue harshness of the Appellant’s deportation the prospective birth of the couple’s third child before they had actually been born, as follow (emphasis added):

64. ….. Mr Malik’s first response to this point was to say that the judge’s task was to consider the impact of deportation as at the time of the appeal, on Mrs Sicwebu and her two daughters. That is correct as far as it goes. However, the evaluative judgment to be made should be conducted in the light of the real-world facts, as paragraph 75 of HA (Iraq) makes clear. Mrs Sicwebu was heavily pregnant at the time of the appeal. Barring tragedy her baby would be born in December 2020, within months of the decision under appeal. It would be entirely unrealistic to ignore this fact ……What is clear however, is that the judge did not expressly consider anywhere in his reasons the imminent birth of a third child and the great impact that might have on Mrs Sicwebu's ability to cope in her husband's absence. The fact that she would be looking after a new born baby alone was also plainly relevant to the assessment of the impact of the appellant's absence on the other children and whether this would be unduly harsh.

65. ….I would also have expected the reasoning to reflect engagement with the question of how Mrs Sicwebu would be able to care and provide for her daughters at the same time as having to look after a new born baby, on a long term, permanent basis, notwithstanding her chronic illness and the absence of any support network…

Taking a step back, and as a matter of logic, it is very hard to discern how an error in law can be founded on a failure to take into account a fact which did not exist at the time the appeal was heard by the UT (IAC). Whilst it is clear that the statutory scheme has for some time allowed all facts in existence at the date of a hearing to be considered in the context of a statutory appeal (s. 85 (4) Nationality Immigration and Asylum Act 2002, subject now to the SSHD’s “new matter” permission via s. 85 (5) and (6)) this approach by the Court of Appeal is arguably replete with conceptual and practical difficulties and it will be interesting to see if the SSHD seeks to appeal this aspect of the Court’s decision to the UKSC.

In SSHD v TC (https://www.bailii.org/uk/cases/UKAITUR/2023/UI2022006242.html), also a deportation appeal, the Presidents of both tiers of the IAC somewhat pointedly reflect on the SSHD’s failure to engage properly with the mandated pre-appeal review process (see paragraphs 14 – 17), standing in stark contrast to the Appellant’s well prepared, compliant skeleton argument and appeal bundle (8-13), and explicitly refer to Practice Statement No 1 of 2022 in so doing. This is therefore timely reminder to parties of the importance of compliance with that Practice Statement, but more significantly, however, the IAC were also plainly troubled (inter alia) by the opaque nature of the FtT’s decision and specifically the Judge’s somewhat one-sided failure to resolve matters in dispute between the parties (paragraphs 28-34, especially 32-34; see also Secretary of State for the Home Department v Ganga Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC)). The IAC’s inclusion of their views on the proper deployment of giving inadequate reasons as a ground for appeal is additional helpful insight for those practitioners regularly seeking permission to appeal in the IAC, all the more so given the seniority of the panel.

Finally, and very briefly, I discuss Secretary of State for the Home Department v MS. The determination is noteworthy because it revealingly identifies undoubtedly overbearing and intimidatory conduct by a First-tier Tribunal Judge towards a Home Office Presenting Officer as being one of several material factors which rendered the decision under appeal unsustainable. I observe that the fact the President of the UT (IAC) has found it necessary to include the following in the headnote of the authority is likely an indication of the concern engendered by the hearing in issue:

Whilst it is, of course, always necessary for the judge to retain control of proceedings, so as to ensure that they remain focussed, effective, and efficient, it is also a key part of the judge’s role to conduct the hearing to ensure that they get the best out of all the participants appearing before them. This approach should enable the judge to do justice to the case and help to reach a high-quality decision for the parties. The task involves listening as well as guiding, and patience tempered by the need to steer the parties in the direction of the issues that the tribunal needs to decide. However carefully constructed or well-reasoned, a decision which is founded on an unfair hearing cannot stand.

Richard Hopkin

21 June 2023